Summary: major developments of the day

What a day! I’m all freedomed out. Here’s what happened:

George Brandis, the attorney general, pulled out of his keynote address at the conference because of the events of the last 48 hours – the government’s withdrawal from reforms to the Racial Discrimination Act and the controversial metadata collection proposal.

Mark Dreyfus, the shadow attorney-general, said Brandis has been a “train wreck” as attorney-general, and that he has lost the confidence of his party over the government’s shelving of changes to the Racial Discrimination Act.

Both Gillian Triggs, the head of the Australian Human Rights Commission, and Rosalind Croucher, from the Australian Law Reform Commission, predicted that Australia would soon have a legislated bill of rights, or charter, to protect human rights – including free speech.

Professor Augusto Zimmerman, of Murdoch University, lashed the Abbott government for abandoning 18C in favour of preserving relations with Australian Muslims, saying it would weaken our ability to fight Islamic terrorism.

Andrew Greste, the brother of Peter Greste, spoke on his brother’s predicament, saying: “The number one priority for him has been to ensure this ordeal does not break him mentally.”

Bret Walker SC denied that the collection of metadata was, in and of itself, an imposition on freedom, but raised questions about warrants.

The IPA’s Chris Berg expressed disappointment in the government over the 18C and national security announcements made on Wednesday. He asked how much of the Abbott government’s “freedom agenda” was still intact.

Roy Baker, a leading defamation lawyer and academic, said Australia should reintroduce a limited right for corporations to sue for defamation, with a strict cap on damages.

Fredrick Töben, who was imprisoned for Holocaust denial in Germany in 1998, quizzed the conference about whether “matters of Holocaust” would be made freer to talk about. The IPA’s Chris Berg rebuffed him, and encouraged the audience to read about Töben’s original cases.

Bret Walker SC: I do not accept that collecting metadata affects my freedom

Bret Walker SC said that when it comes to Metadata, “I do not accept that is affecting my freedom at all. It’s important that I am brought to book and held to account to what I have said.”

He used the example of asylum seekers, saying they must be subject to “national security” screening as they come to Australia, perhaps by trawling things they’ve written about their involvements in conflicts. Walker was sceptical that this was an infringement of free speech, instead calling it an “imposition of proper personal responsibility” .

“When one talks about metadata and surveillance, and the storage of such data, and the resort to it by those who are investigating crime, we must stay a little sober,” he said, noting that we would be more upset if our records were not kept, because some crucial detail in an investigation might be lost.

He did qualify that there must be sufficient warrant provisions, which will, I imagine, come up during the question time, as the current regime provides for warrantless access.

Bret Walker SC just gave a fascinating short address on national security legislation and whether it’s a free speech issue. He doesn’t think so: “Free speech is a red herring.” I’ve taken down as much of it as possible below:

“I was pressed both before and during my appointment [as Independent National Security Legislation Monitor] by a deal of rhetoric and polemic rarely reaching the level of analysis, about the threat national security legislation posed to free speech.”

“The way I see it is as follows: the difference between the UK and Australia ... in England and Wales you simply cannot use, in a terrorist trial, any of the reams and reams of covertly recorded telephone and computer intercepts by which the would-be terrorists have been identified. They’re not admissible.”

In Australia, we use the very words of the accused themselves, he said. “The difference is telling: in this country, I’ve never heard it said that it’s unfair for an accused terrorist to be confronted with their own words.”

The attorney general George Brandis, in the recent introduction of the proposed national security amendments, “himself correctly referred to the telling words and gestures, depraved obscene and disgusting, by which the severed heads of terrorist victims were held up by Australians ... a very striking admission, confessional material, which if proved accurate would have some impact before a jury.”

“The speech on those disgusting videos was obviously not free, in the sense that the consequence of it being tendered before the court...” Neither surely do we think free speech is under attack when someone speaking in private is being recorded during a duly authorised operation, Walker said.

Twomey finishes by mentioning the Unions NSW case in the high court, which was the test case for a lot of these questions. There are a range of views on the case you can read at New Matilda here if that takes your fancy.

Anne Twomey is now talking about donations as speech. Click on the livestream to watch this one.

Here’s a few questions she’s raising:

Are donations themselves speech, or are they a way of funding political speech?

If a political donation is made, and it’s not publicly disclosed, is it still speech? Do you have to “express” your support for a party in a “public” donation for it to be speech? Or is there still an expression of your support simply by making the donation, ie. to the members and officers of that party?

It’s those sorts of covert donations, with a view to influencing the party internally, that are the ones we’re concerned about when it comes to corruption, Twomey says.

Dreyfus: the Abbott government's commitment to free speech is a facade

Shadow attorney-general Mark Dreyfus has described the Abbott government’s commitment to free speech as a “facade”, and their grasp of political philosophy and human rights as “undergraduate”, in his keynote address to Free Speech 2014.

In a stinging attack on attorney-general George Brandis, Dreyfus said the repeal of section 18C of the Racial Discrimination Act, Brandis’ “defining policy priority” as attorney-general, “failed because he did not care to understand the breadth and nuance required of an authentic human rights agenda”.

Dreyfus also criticised proposed national security provisions, in particular proposed plans to introduce 10 year jail terms, without exemptions, for anyone leaking information about Asio “special intelligence operations”, which he termed an active attack on a free press.

While pledging to work constructively with the Abbott government on national security matters, Dreyfus said Brandis had spent “more than two years now fulminating over a civil prohibition on race hatred, and now his own legislation would criminalise an activity of journalists”.

Brandis has “clearly lost the confidence of his Cabinet colleagues, not to say the Liberal backbench and a very large part of the Australian community,” he said.

The Abbott government’s restrictions on community legal centre advocacy, changes to competition law to prohibit protest, criticisms of the ABC and lack of urgency on journalist shield laws also came under criticism.

In the absence of attorney-general George Brandis, the shadow-attorney general’s address has become something of a keynote. Here’s a transcript of Mark Dreyfus’ speech if you’d like to read along. I’ll pull out the highlights in a shorter post in a minute or so.

I thank the Australian Human Rights Commission and Human Rights Commissioner Tim Wilson for inviting me to speak at this event.

Free speech is a fundamental human right, and I am very pleased to have the opportunity to discuss it this afternoon under the auspices of this Human Rights Commission symposium.

Our country has a long tradition of engagement with the principles of human rights developed by the international community in the aftermath of the Second World War. Doc Evatt, a great Australian jurist and stalwart of the Labor Party, presided over the adoption by the UN General Assembly of the Universal Declaration of Human Rights in 1948.

The preamble to the Universal Declaration expressed the General Assembly’s recognition of ‘the inherent dignity and of the equal and inalienable rights of all members of the human family’.

In the intervening years, the international community has settled a range of human rights treaties which give binding force to this basic principle, and to the rights enumerated in the Declaration. Australia has generally played a constructive role in this work. But not always.

Unlike many comparable jurisdictions, Australia lacks of a full charter of rights. We have however implemented a number of our treaty commitments in legislation such as the Racial Discrimination Act, the Sex Discrimination Act, theAge Discrimination Act and the Disability Discrimination Act.

The Human Rights Commission has a special responsibility, as our national human rights institution, for the promotion and protection of human rights in this country. It is empowered to administer those human rights statutes that Australia has implemented. Independent of government, it works to make sure that Australia honours the human rights commitments we have made.

The Commission does immensely valuable work, and I am very happy to speak here today about an important human rights issue.

I start by giving this context because we must be very clear what we mean when we talk of the human right to free speech.

Freedom of speech has been an issue I have dealt with not just in my public life as a parliamentarian, but also in my practice as a lawyer before entering politics.

In my practice at the Bar I specialised in, among other areas, the law of defamation. In that area of the common law, which I assure you is far more restrictive of speech than anything in a human rights statute such as the Racial Discrimination Act, the courts squarely grapple with the boundaries of lawful speech.

And, as is the case with so many areas of the law that require the balancing of competing societal interests, the law of defamation continues to change. And I am happy to say that when it comes to human rights, our laws are generally changing for the better. From my perspective, that means that our laws are becoming better at protecting human rights, including the right to free speech.

A good example is the establishment by the High Court of Australia’s implied constitutional freedom of political communication in Theophanous v Herald & Weekly Times, Lange v ABC and Levy v State of Victoria.

Since leaving the Bar and entering parliament I have maintained my longstanding commitment to improved legal protection of human rights in this country, and that certainly includes the protection of free speech.

Of course, everyone declares that they are committed to freedom of speech.

George Orwell wrote about the abuse of political terminology in his excellent 1946 essay Politics and the English Language. He said that words like ‘freedom’ are capable of several different and irreconcilable meanings. Orwell wrote that this kind of word can be used dishonestly. What a politician really means by ‘free speech’ can be very different from what their audience takes it to mean. It is very easy to declare one’s commitment to freedom of speech. But the critical question is – ‘What does that commitment mean in practice?’

For many of my political opponents, it seems that ‘free speech’ has a very selective meaning indeed. Though they would never dare admit it, ‘free speech’ for some means that reactionary shock-jocks are free to indulge in rants that ride roughshod over the standards of truth and basic decency that our community expects and deserves. For some, it means that no racist hate speech is too vile to be constrained by the law. For some, it means the untrammelled freedom for large corporations to dominate public debate with campaigns designed to serve no interests other than their own.

These same loud devotees of ‘free speech’ are very quiet indeed when the freedom of community groups and activists to participate in important debates is threatened, or the freedom of community legal services to advocate for law reform is removed. They are nowhere to be found when overzealous or clumsy lawmaking threatens the ability of real journalists to do their vital work.

They have a very narrow understanding of what free speech means.

By contrast, I will be very clear about what I mean when I talk about free speech.

The freedom of speech I seek to advance is a much more important value than that advanced by the Abbott Government. It is rooted in the principles of human rights, properly understood: the principles that this Commission works to advance in our society.

I firmly reject the false argument put by some that practically any regulation or restriction on what we say infringes our right to free speech. I reject the simplistic notion that our only legitimate recourse against harmful or hateful speech is to be found in an imagined ‘marketplace of ideas’.

This reductionist understanding of what free speech entails is mistaken on several counts.

First, what I will call the ‘absolutist’ position on free speech ignores the fact that government restraint is not the only threat to freedom of speech.

As the Race Discrimination Commissioner noted in his excellent Alice Tay Lecture in Human Rights and Law at the ANU in March this year, freedom is not merely the absence of external restraint. We rightly speak of ‘freedom to’ as well as ‘freedom from’.

Regulation can secure the freedom to speak and to engage meaningfully in civic life. Our most important and long-standing democratic institutions reflect this insight. They always have.

Courts, for example, lay down strict rules and procedures about how parties are to argue their case to ensure that proceedings are fair.

The free press, which fulfils a critical role in our democracy, must be careful in its reporting or risk breaching our defamation laws. Even more importantly, the journalists who work in our media are bound by a rigorous set of professional ethics, though the extent to which they adhere to these ethics, and what can be done if they do not, are complex issues worthy of a speech in themselves.

Parliaments, ostensibly the ultimate forum for free political debate in our society, impose very prescriptive standing orders. While the laws of privilege free me from the constraints of defamation law inside the Parliament, I am constrained in other ways from what I can say. For example, even here, outside the Parliament, I am forbidden as a parliamentarian to reflect on the Speaker of the House of Representatives. The standing orders try to ensure that parliamentary debate is conducted in an orderly, dignified and appropriate manner, though watching question time you might have your own opinion on how successful this framework is.

In almost any forum where our society debates important issues we impose rules governing speech.

My second criticism of the absolutist position on free speech is that it ignores the relationship between free speech and other human rights. Very few human rights, other than the rights to be free of criminal abuses such as torture and slavery, are unqualified.

Implementing an authentic human rights agenda requires careful balancing of competing rights against one another. The human rights system both domestically and internationally is intended to clearly direct our attention to this important and delicate task. The statute establishing the Australian Human Rights Commission expressly says that it is the duty of the Commission to perform its work with regard to the indivisibility of the whole body of human rights.

That free speech is limited by reference to other human rights is apparent on the face of the international agreements we have agreed to. Article 19 of the International Covenant on Civil and Political Rights (‘ICCPR’) states that everyone shall have the right to freedom of expression. That article goes on to stipulate, however, that the exercise of this right ‘carries with it special duties and responsibilities’. The right to freedom of expression may be curtailed in order to protect the rights of others.

It was the mistaken belief that an absolute freedom of speech trumps other important rights which drove the Abbott Government’s misguided attempt to repeal s 18C of the Racial Discrimination Act.

Of course, this divisive attack on our protections against hate speech was finally dropped on Tuesday by the Prime Minister, who termed it an unnecessary ‘complication’ for the Government.

The Prime Minister seems to have developed a newfound talent for understatement. I understand that the Prime Minister was trying to ease the embarrassment to Senator Brandis, who has so clearly lost the confidence of his Cabinet colleagues, not to say the Liberal backbench and a very large part of the Australian community.

However, the Government’s attack on section 18C was much more than a ‘complication’. That the Prime Minister described his abandonment of Senator Brandis’s signature policy in terms of a simple political calculation tells you a lot about this Government’s continued commitment to a distorted view of what freedom of speech means.

Most notably, what Mr Abbott failed to do this week was to admit to the Australian people that he and his Attorney-General had got it wrong on section 18C. And so the victory we had this week in the Government’s back-down was marred by the knowledge that the eloquent arguments expressed in the thousands of submissions opposing the gutting of our race hate protections did not convince the government to abandon its reckless course.

What convinced the government to back down was that the political costs of continuing on its hugely unpopular and ideologically blinkered course were simply too great.

So while we have had a victory – and I congratulate again all those who fought the government on this issue – the truth is that government’s ideological blinkers are still firmly in place.

They still don’t get it. They still have an undergraduate understanding of political philosophy and of human rights. The Abbott Government still doesn’t understand, as any human rights lawyer could explain, that the human right to free speech has always been subject to the human right to be free from racial discrimination.

Senator Brandis’s defining policy priority as Attorney-General has failed because he did not care to understand the breadth and nuance required of an authentic human rights agenda.

Senator Brandis, a sworn devotee of the ‘marketplace of ideas’ his government appears determined to shut down, should recognise when he has lost an argument. His colleagues certainly have.

I will not say any more about the Racial Discrimination Act now. My topic today is free speech. The particular focus on s 18C by Senator Brandis, and the spirited defence that this attack engendered, has distracted from a number of other threats posed to free speech in our society.

I am sad to say that many of those threats emanate from the current Government: a government whose heated rhetoric on free speech is belied by its actions.

I will return for a moment to Orwell’s reflection on politics and language. When Abbott Government ministers talks about ‘free speech’, they aren’t just ignorant, but disingenuous.

I don’t for a second believe that those who trumpet their commitment to unfettered free speech in the debate surrounding the Racial Discrimination Act in actuality support an absolute approach to freedom of speech.

If they hewed closely to their professed principles, the libertarians amongst the Abbott Government would be demanding a radical revision or even abolition of defamation law and the abolition of offensive language offences. They would defend the fundamental right to make misleading statements in trade and commerce.

No, though the Liberal Government and its supporters talk in sweeping terms about ‘free speech’, they have in mind a much more selective application of that right.

The Attorney-General likes to invoke Voltaire’s (perhaps apocryphal) declaration that he would defend to the death the right to say things with which he completely disagrees.

This is heady stuff in the Australian political arena, which is usually more given to pragmatism than philosophy. I am sad to say that I can see no evidence of the sort of political bravery that would have impressed the great French thinker.

Au contraire. Voltaire’s principle is honoured only in the breach. Senator Brandis and his colleagues are more than happy to attack free speech, and when they do, it is invariably the type of speech and the type of speaker with whom they disagree.

I will give you a couple of examples.

Though this Government says it has a ‘profound’ commitment to free speech, it has deliberately sidelined expert NGOs from policy discussion.

Senator Brandis has changed the terms on which the Commonwealth funds community legal centres (‘CLCs’) right around the country to prevent them from speaking out on ways in which the law might be usefully reformed, or even from responding to Government inquiries and consultations.

He has amended the sector’s funding agreements to exclude Commonwealth funding for ‘law reform and advocacy’.

Chillingly, the Government has also removed clause 5 of the agreements, inserted by the last Labor government. That clause affirmed the commitment of our government that conditions attached to Commonwealth funding to CLCs would not ‘stifle legitimate debate or prevent organisations engaging in advocacy activities.’

The Government has cancelled all Commonwealth funding for Environment Defender’s Offices (EDOs). EDOs are small, highly dedicated organisations which work to protect the environment through law. EDOs assist the community at a grassroots level with legal advice and representation in public interest environmental matters. They work towards the improvement of our environmental laws and regulations.

We know from documents released under freedom of information that Senator Brandis’s decision to completely defund the EDOs came just weeks after the NSW Minerals Council wrote to him to complain about EDO advocacy. In Senate Estimates, Senator Brandis admitted that there had been no analysis of EDO funding arrangements done before the Government terminated all funding.

Indeed, Senator Brandis’s decision flies in the face of the advice being provided to his Government, if he would care to listen. The Productivity Commission has strongly endorsed the value of CLC advocacy work in its Draft Report on Access to Justice Arrangements.

We might conclude that the Government cut funding to these community organisations simply because they don’t like what those organisations sometimes say and what they sometimes advocate for, regardless of the benefits they consistently provide to our community and our environment.

This is not the only front on which this Government is fighting those who wish to participate in public debate. The Federal Council of the Liberal Party recently unanimously supported a motion by Federal MP Andrew Nikolic calling for environmental groups to be stripped of their tax-deductible status.

Even more chillingly, members of the Abbott Government have now indicated that they plan to use competition law to silence environmental activists.

The Parliamentary Secretary for Agriculture Richard Colbeck has told the press that there is an ‘appetite’ within the Government to remove the current exemption to the prohibition on secondary boycotts provided for environmental activism.

This Government, which holds itself out as a champion of free markets and free speech, wants to prohibit Australian citizens from speaking out in the marketplace in defence of environmental causes they disapprove of.

The Government’s blind spot on free speech it doesn’t approve of isn’t limited to the NGO sector or to environmental activism. Worryingly, it extends to the media. Though the Government is fond of reactionary opinion columnists, it does not appear to have much interest in defending real, independent journalism.

In Opposition, Senator Brandis promised that he would be a champion of the free press. In May 2013 he said on the ABC’s Lateline: ‘there is no greater friend of journalist shield laws than me’.

In Government, Labor began working with State and Territory Attorneys-General to create uniform national system of journalist shield laws. We were serious about making sure that journalists were able to do their vital work and uphold their ethics without risking contempt charges and even gaol time.

Senator Brandis, stalwart of freedom that he is, has abandoned this work. This Attorney-General, who claims to be a committed classic liberal, has taken shield laws off the agenda at COAG. Instead, he is working with his colleagues in Liberal state governments towards the implementation of Campbell Newman-style repressive law and order policies nationwide.

But Senator Brandis, who describes himself as ‘a John Stuart Mill man’, doesn’t just fail to protect the free press. He actively attacks it.

The national security legislation Senator Brandis has recently introduced into the Senate contains a new provision, s 35P, which makes it an offence punishable by up to 10 years imprisonment for anyone to disclose information about certain undercover operations declared by ASIO to be ‘special intelligence operations’. As has been pointed out, this could apply to journalists, even when they did not know that information relates to such an operation. There are no exemptions.

I have no desire to politicise national security issues. I have said publicly numerous times, and privately to the Government, that I will always work constructively to help the Government on any legislation necessary to keep our nation safe. Senator Brandis’s national security legislation has been referred to the bipartisan Parliamentary Joint Committee on Intelligence and Security for just this purpose.

It is clear to me however that the proposed s 35P as currently drafted is not necessary. It is an unprecedented overreach of government power which poses a real threat to the freedom of the press. Senator Brandis has spent more than two years now fulminating over a civil prohibition on race hatred, and now his own legislation wouldcriminalise an activity of journalists.

The Government must amend the legislation to remove this threat to freedom of speech and freedom of the press. Labor will oppose it in its current form. We will not tolerate legislation which exposes journalists to criminal sanction for doing their important work. Work that is vital to upholding the public’s right to know.

I suggest to you that these attacks on free speech shows what a façade this Government’s professed commitment to free speech is.

The protection of human rights should not be a matter for partisan contest. Despite what Senator Brandis sometimes suggests, human rights are not and never can be the province of any one party. Governments of both political complexions have made meaningful contributions to human rights protection in this country.

The Abbott Government, however, has taken us backwards. Hopefully, this government will have learned a serious lesson from its failure this week in relation to section 18C. And if this government has any integrity about its stated principles, it will cease its attacks on free speech in this country.

In particular, the Abbott Government must renounce its hostility to environmental groups and wider civil society, and reinstate government support for the involvement of CLCs in advocacy and law reform processes. Senator Brandis must get to work on the journalist shield laws he promised, and encourage his Cabinet colleagues to cease their attacks on the independence and capacity of the ABC to report what is happening in our nation.

And the Government must also abandon repressive changes to our competition law that would shut down the public’s right to protest through organised actions against corporations.

Freedom of speech must not be reduced to a simplistic slogan, employed as a war cry in the pursuit of base political objectives. Freedom of speech must be respected as a fundamental right in our society, a nuanced and deeply important value that we must fight to uphold, and to strengthen.

Professor Spencer Zifcak asks David Leyonhjelm about the “shroud of secrecy” on asylum seekers. Here’s a rough transcript of his answer:

To the extent that we’re spending taxpayers’ money on these operations ... it does come down to what do you regard as relevant information. The government argues operational matters aren’t relevant, others disagree – to be quite frank I don’t want to go there today.

My default position would always be transparency when it involves taxpayers’ money ... I think the government occasionally has a case against complete transparency, but perhaps not as often as they think.

Liberal democrat senator David Leyonhjelm says the government’s planned changes to national security laws will mean Asio could class any operation as a “controlled operation”, placing it outside public knowledge and scrutiny. This would, Leyonhjelm said, give Asio “the immunity to be incompetent”.

He also says the government has not disclosed the adverse results of the Wikileaks and Snowden revelations, and says the public service should be opened up to scrutiny, which would be the best defence against whistleblowers.

George Williams is worried about the bikie laws in QLD, and the anti-protest laws in Tasmania, as well as some of our national security legislation.

Spencer Zifcak, who lives in Victoria, doesn’t like the fact that certain non-economic considerations were taken off the table in the process by which the East-West link development has come about. He also worried that nobody could raise the finances to challenge it under Victoria’s charter of rights.

Dreyfus: Brandis is a 'walking disaster' as attorney-general

Mark Dreyfus, the shadow attorney-general, has called George Brandis “a walking disaster” during the break, challenging Tony Abbott to remove him as attorney-general.

“It’s clear that Senator Brandis doesn’t have the trust of the prime minister or the cabinet on social issues,” Dreyfus said, “so why should the Australian people trust him on national security issues.”

He suggested Malcolm Turnbull as a better alternative, as opposed to Brandis, who he said “does not even understand the basics of his own portfolio”.

“We’ve seen yesterday, the prime minister and the attorney-general not even able to agree from one day to the next on what they have said they had agreed in principle about their mandatory data regime,” Dreyfus said. “The Australian people deserve a great deal better than this.”

Dreyfus said he would not be drawn on Labor’s stance on data retention until the government produced details of their own plan, including oversight and safeguards. He said “a national discussion, a national debate and proper scrutiny” was needed, and said that discussion should involve the existing powers that permit warrantless metadata collection by organisations like Bankstown council and the RSPCA.

Professor Spencer Zifcak from Liberty Victoria is waxing philosophical about the place of free speech in a democracy:

“A special place should be reserved for speech that is of public or political concern. Limits to it should be kept to a minimum. The position is different however, for speech that has only a tenuous connection to democractic deliberation.” Zifcak identifies racial hatred as a kind of speech for which limits may be more easily justified.

George Williams AO think we have a permissive culture in Australia when it comes to restricting free speech, and wonders if we may be seeing the revival of some of the old sedition debates. A legal problem needs a legal solution, and for Williams that would ideally be in the constitution.

The former Labor member Gary Johns, speaking on the 1994 amendments to 18C: “If I were Mark Latham I’d describe that decision in crude terms, but because I’m not, I’ll just say it’s weak to walk away from perfectly reasonable propositions.”

On Bolt, John says, “The question was one of ‘Why does a benefit exist for a particular group of people?’” The judge became a “literary critic”, rather than a judge, in Johns’ estimation.

Professor Suri Ratnapala: “Free speech has been the basis of every great revolution in the history of mankind.” He cites Hellenism, the Roman Republic, the Reformation, the Enlightenment, and the commercial society we have today.

The principle by which free speech should be limited is Mill’s harm principle, but the problem is there’s no agreement on what harm is. Ratnapala disagrees with earlier questions regarding the difference between dignity and property types of defamation – how can you quantify dignity for the purposes of damages? But you can quantify property. Emotional hurt shouldn’t be a justification to limit free speech, he says.

Lunchtime Update

Law professor Augusto Zimmerman criticised Abbott’s rationale for abandoning changes to 18C of the Racial Discrimination Act – to keep good relations with the Muslim community – as a move that would weaken Australia’s ability to deal with radical Islam

The IPA’s Chris Berg called the Abbott government’s abandonment of proposed changes to 18C and the introduction of data retention “very disappointing”, and asked “what is left of the Abbott government’s “freedom agenda?”

Fredrick Toben from the Adelaide institute questioned whether “holocaust matters” would be reopened under any free speech agenda, and was rebuffed.

“Surveillance has taken most of us, as naive users, by surprise,” Thomas says. He quotes an author who describes users as “elements in an information gathering system” rather than people with the control to navigate their own way through the internet.

“There’s a real problem with knowledge, where we aren’t keeping up particularly well ... the pace of change has produced really serious disruptions in industries that rely on freedom of expression,” Thomas says, citing journalism.

Martin Hirst from Deakin University asks a question to Zimmerman regarding 18C: “How would you describe Judaism? Is it a religion or a race?” He refers to this week’s resignation of Mike Carlton from the SMH, asking whether calling someone a “Jewish bigot” is a racial or religious statement.

Berg: “I have no expertise in that whatsoever.”

Zimmerman: “People somehow think Jews are a race, not just a religion.”

Law professor Dr Augusto Zimmerman has criticised Prime Minister Tony Abbott’s decision to dump proposed amendments to the racial discrimination act, saying his desire to preserve relations with the Australian Muslim community will weaken Australia’s ability to combat radical Islam.

The Racial Discrimination Act “legislation has nothing to do with religious discrimination”, Zimmerman said, and “From a freedom of speech perspective this is problematic because religion, unlike race, is not an immutable genetic characteristic ... While people cannot choose the colour of their skin, religion, to some degree at least, is a matter of personal choice.”

Hate speech laws weaken Western democracies’ ability to “defend their own interests”, “in a world where terrorism has become common, and where radicalised Muslims have expressed sympathy with terrorists”.

“This is the singular tragedy of hate speech laws that reduce free speech on some of the most fundamental issues of public morality,” Zimmerman said.

“Naturally, radical Islamists living in a Western democracy will discover different mechanisms to prevent people from ‘offending’ their radical beliefs,” he added. “They will find in hate speech laws a suitable mechanism to strike fear and intimidation on the ‘enemies’ of their religion.”

“The distinction between racial vilification, being the object of the RDA, and religious vilification needs to be clearly defined. To this end, the Prime Minister’s statements only evidence the misconceptions surrounding the legislation.”

Dr Augusto Zimmerman is speaking on anti-discrimination and hate speech laws: “One of the most effective means by which free speech can be silenced is under the cover of laws against racial discrimination.”

“The key words used in the existing s18C, namely ‘offend, insult, humiliate’, are imprecise and largely subjective in nature. Attempts to define these words with any degree of precision quickly ‘become[s] a circular and question-begging exercise’.

He also says that “under s18C judges are instructed to approach the conduct in question not by community standards but by the standards of the alleged victim group”.

Testing to the standard of the ‘reasonable victim’ lowers an already minimal harm threshold, adding further imprecision and uncertainty, increasing the sections’ potential chilling effect on speech. Of course, this goes in line with the morally relativistic tendency to ‘minimise cultural differences’ as a way of ‘celebrating diversity’. In our view, however, the use of ordinary community standards is a more appropriate test to be applied in this context.

Corporations should have a limited right to sue for defamation

Roy Baker, speaking on defamation law reform, says Australia should reintroduce a right for corporations to sue.

Removing it in Australia was an egalitarian measure, but heavy handed, Baker says. We should reintroduce the right for corporations to sue for defamation, but for reputational “dignity rights”, rather than property rights, only. “I would hugely curb the damages corporations should recover,” he said.

We should vastly simplify defamation law, he also said. A good place to start would be by “scrapping the single meaning [or publication] rule”. Baker has written on some of these issues here.

Essentially, Baker says a defendant should be able to say “That’s not what I meant”, where the clarification is reasonable based on the words of the publication.

There should also be a “right to correction”, a clarification of the “right to honest opinion” – what are statements of fact, what are statements of opinion. There must also be a public interest defence, and recommends the UK defamation act (discussed here).

The IPA's Chris Berg: "what is left of the freedom agenda?"

Berg is getting stuck into the Abbott government, calling the abandonment of racial discrimination reform and the introduction of data retention “very disappointing”. “What is left of the [Abbott government’s] freedom agenda?”

He also mentioned anti-copyright infringement schemes: “How does this differ from Labor’s reviled internet filter proposal?”

And the new frontier in free speech, “mass surveillance”. Berg quotes a study that says it has a psychological chilling effect: “What websites would you be reluctant to visit ... what would you decide not to read, not to watch in the privacy of your own home?”

Berg says “One cannot falsely shout fire in a crowded theatre” – it’s astonishing why people keep using this metaphor, Berg says, because it was designed as an analogy for why people should support the US war effort.

Free speech isn’t something that should help the state function better, Berg says, but is more intrinsic to our autonomy. He says most human rights debate is “philosophical busywork”, and that Australia has a massive problem with free speech on a principles level, citing heavy-handed defamation, internet filtering and superinjunctions.

The ramifications of that superinjunction? “I am unable to discuss the unlawful activities of a government department at a conference on free speech,” Berg says.

Berg is up first: political communication is not a right, it’s a “pragmatic legal workaround” that goes to a contradiction in westminster democracy: people choose the parliament, but the parliament can shape the debate (using legislation) inside which that choice must take place.

Berg is talking about free speech as a “philosophical” or “ideological” notion: “human rights claims are political claims”.

“Peter has not sought the limelight, may his story, his truth, showcase his ability to let free speech shine,” Andrew Greste concludes, asking people to visit www.freepetergreste.org for updates. Now it’s time for morning tea!

Through his professional career the idea of a constitutionally enshrined press freedom was an abstract, an idealised principle that he understood to be a fundamental legal cornerstone of both his trade and the wider concept of a free and open society. This only really existed in the realm of the constitutional courts and human rights conferences and up until now he really took press freedom for granted.

And on learning about the life of a journalist:

Being directly involved in and affected by the case I have been exposed to the life of a foreign correspondent. I have come to understand some of the pressures, the dangers and risks they take in carrying out their day to day work to bring us the news and events from around the world. The experience has certainly given me a new appreciation for the work Peter and his colleagues do and I am truly grateful for the assistance given to me by many of the journalists who have covered the story.

Peter believes it isn’t enough to simply talk about press freedom; it must be defended loudly and vigorously in courts in the street and in the media. If they are eventually acquitted it will be a victory for press freedom but to the authorities who placed them there it has also have achieved some of their objectives. Simply by arresting them they are warning journalists that contact with the political force of the previous government in Egypt could put you behind bars. And this is in a country that only in January celebrated a new constitution that enshrines some of the world most pious commitments to free press. Peter’s experience is probably only unique in showing how quickly and dramatically it can happen.

Peter continues to remain mentally and physically strong and has been conscious to look after himself. An Egyptian prison is not a place where you want to get crook. My brother and I have been visiting him regularly on a weekly basis since the middle of February. Family visits, along with consular visits being his only other source of contact with the outside world.

He has very limited access to his legal representatives. Through this experience Peter has come to the realisation that he is powerless to fight from within. The number one priority for him has been to ensure this ordeal does not break him mentally, and to rely on those of us outside to fight the fight for him.

Andrew Greste, the brother of jailed Australian Al-Jazeera journalist Peter Greste, has taken the podium. He’s a cotton farmer from Wee Waa:

Peter’s arrest and incarceration has taken me to places a long way from home and away from the introverted lifestyle I normally lead. I have actually skipped out of a cotton conference being held in Queensland to be here, but obviously at the moment Peter’s case has taken a very high priority in my life and the life of my brother Mike and parents because we believe in Peter’s innocence.

He has no axe to grind or political agenda to push which was often demonstrated in the way he conducted himself professionally and the way he presented the stories he covered. We continue to fight for Peter’s release, because we believe in Peter’s innocence and feel we cannot leave a stone unturned in the campaign for his release.

Where privacy and free speech do conflict, finding the right balance between them will become more pressing, Croucher says. The phone hacking scandal shows that invasions of privacy in the name of a free press won’t be tolerated

She also mentions last year’s copyright inquiry, and wonders, given the current copyright regime, how Mozart or Shakespeare would fare today. But overly permissive copyright laws can also inhibit creativity, Croucher notes.

Croucher is talking about competing ideas of negative and positive freedoms: “freedom from”, and “freedom for”.

“The power of those prepositions also ties into what the discourse and the arguments and the policy work around freedom is today ... we can never escape the issue that it’s about balance.”

She mentions the privacy inquiry, the report of which is yet to be dropped. She says one of the main concerns was that the proposed introduction of a “cause of action for serious invasion of privacy would damage free speech” – that the media might be sued for invading privacy.

Wilson says the racial and sexual discrimination acts would have been better had they been harmonised under a uniform “public harassment” approach, rather than making reforms ad-hoc to 18C. That’s what a “Team Australia” approach would have looked like.

Wilson says the proposed public service social media code and the community legal centre advocacy restrictions, while they don’t have an explicit free speech prohibition, will have a “chilling effect” – they’re too opaque and contain subjective tests.

Wilson says the Classification Board is a “defunct” feature of a period of centralised government control over speech that has largely been exploded by the internet.

He describes the net as a tool that allows us to access “the full fruits of humanity’s greatest achievements”, and also the “sewer” of our worst impulses. Obviously anyone who’s ever been on twitter is familiar with the sewer element.

There are many serious challenges to free speech in Australia today, Wilson says. “Today should be the start of a much broader discussion on the contemporary challenges” that free speech faces.

Free speech isn’t just a philosophical matter, he reiterates. It has real consequences – Wilson cites Peter Greste. His imprisonment shows that the liberal democratic right to free speech means the right to speak to power.

He also thinks we should change the tone: instead of focusing on “free speech at the margins”, or speech we don’t like, we should instead talk about speech as “an end in itself”.

“Restricting free speech amounts to an assault on every individual’s capacity to exercise their faculties.”

Tim Wilson has taken the stage now. The primary objective of the conference when it was proposed was to move the discussion on from the racial discrimination act and put the focus back on fundamental freedoms. Wilson thinks this has been quite successful.

“There’s a need for an ongoing lively debate about this important human right, and its role in Australia,” Wilson says.

OK, now we’ve got Gillian Triggs – president of the Human Rights Commission, who has flown in from Manila and remarked that it might be easy to think “the timing of this symposium has been impeccable”.

“Two days ago, we learned the proposed amendments will not proceed ... instead of amendments to 18C, we have new laws for terror.”

“Seemingly overnight, there has been a radical reversal of the public debate,” she mentioned – touching on revocation of passports, new terror laws etc.

Disturbed to hear the government has backed down on 18C and will keep offensive speech illegal. Very disturbed.

Rosalind Croucher, president of the Australian Law Reform Commission, will be giving some remarks about law reform. Justinian, the legal rag run by our esteemed colleague Richard Ackland, profiled her here.

Perhaps the most interesting morning session will be Andrew Greste, the brother of jailed Al-Jazeera journalist Peter Greste. I’m really looking forward to hearing what he has to say.

Free Speech 2014: first things and links

For the philosopher Ludwig Wittgenstein, language was a kind of prison. For him, “the limits of my language are the limits of my world”.

Wittgenstein died in 1951, which is a shame, because it meant he missed out on today’s Free Speech 2014 symposium, organised by freedom commissioner and Institute of Public Affairs alumnus Tim Wilson.

The conference comes at the end of a tumultuous week for the free speech agenda: the government’s planned amendments to the Racial Discrimination Act were shelved on Wednesday evening, and George Brandis, the attorney general, has announced wide-reaching data retention plans that critics have long criticised as a staggering attack on civil liberties.